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At his press conference Wednesday, President Barack Obama accused his own
country of practicing torture: “Waterboarding violates our ideals and our
values. I do believe that it is torture.”
These words are no mere expression of opinion. They have important legal and
political consequences. Just one example: On Thursday, ABC News reported the
names (and revealed the faces) of two contractors who had advised the CIA on its
waterboarding program. During the Valerie Plame case, it was thought to be a
very big deal that Bush administration officials had divulged the name of a
former undercover CIA agent. ABC sourced their news leak to government
officials, too. Did Obama’s words embolden these officials to name names–and
possibly endanger the lives of two men who acted to defend the nation?
Critics depict the Bush administration as a revival of the Spanish
Inquisition: racks, thumb screws and other horrors. I wonder how many of these
critics realize–as Cliff May of the Foundation for the Defense of the
Democracies pointed out in a brilliant appearance on the Daily Show this
week–that only three terrorists were ever subjected to waterboarding? Or that
this technique was last used in 2003?
The terrorist most frequently waterboarded was Khalid Sheikh Mohammed, the
architect of the 9/11 plan. When captured by U. S. and Pakistani agents in
Karachi, he was immediately asked whether al-Qaeda had any more acts of mass
murder planned. He answered: “You’ll find out.”
The Bush administration decided not to wait to discover what the
arch-terrorist had in mind. Under harsh interrogation, Mohammed revealed
information that saved American lives, according to every serving intelligence
chief–including President Obama’s own director of national intelligence,
Admiral Dennis Blair.
Maybe it was wrong of the Bush administration to do so. Maybe they should
have run more risks with American lives. That would be an interesting debate,
but for obvious reasons it’s not a debate that critics of the Bush
administration want to engage in.
What they are doing instead is using a debate over interrogation methods to
shift the United States to a radical new concept of international law, in which
terrorists gain all the rights of soldiers–without any of the
Here’s a quote from an April 29 op-ed by David Kaye, formerly a lawyer at the
U. S. Department of State: “In the year following 9/11, I handled Geneva
Convention issues for the State Department; I was a principal drafter of memos
arguing that the international law of war applied in Afghanistan and thus to the
detainees held at Guantanamo Bay.”
Kaye’s op-ed implies that this advice was rejected, but not so: The Bush
administration did apply the Geneva Convention to captured Taliban
fighters–that is, to the equivalent of soldiers of the Afghan army. What the
Bush administration rejected was the claim that al-Qaeda terrorists should get
To qualify for Geneva treatment, fighters must meet some basic moral tests:
They must wear uniforms or some other identifying sign. They must carry arms
openly. They must follow the command of a superior officer. To engage in violent
conflict without meeting these tests is itself a war crime. Lawless fighters
like al-Qaeda terrorists fall into the same legal category as pirates or
bandits: “common enemies of all mankind.”
At the United Nations in the 1970s and 1980s, some Arab, African and
communist governments pushed to revise the Geneva Convention to obtain
protection for guerillas and other irregular fighters. These efforts were
rejected by the United States on the grounds that they would “afford legal
protections to terrorists and ‘national liberation movements’ at the expense of
noncombatants” (to quote the 1987 memo rejecting the proposal to amend the
Under international law, as it was understood in all Western countries before
9/11, captured terrorists possess none of the rights of soldiers. That does not
mean that they can be tortured or abused–they cannot. But unlike soldiers, they
can be questioned. Unlike soldiers, they can be tried. Unlike soldiers, they can
be executed for their acts of violence.
Maybe waterboarding was wrong even in 2002-2003. The Bush administration
itself has acted on the understanding that it was unnecessary after 2003. But
make no mistake: What is going on in this so-called “torture” debate is an
attempt to hijack humanitarian feeling to smuggle into international law new
claims on behalf of the world’s most conscienceless criminals.
David Frum is a resident fellow at AEI.
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